Odom v. Wayne County

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED DECEMBER 30, 2008
AMANDA JEAN ODOM,

Plaintiff-Appellee,

v No. 133433

WAYNE COUNTY and CITY OF DETROIT,

Defendants,

and

CHRISTINE KELLY,

Defendant-Appellant.
____________________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

In this case, we are asked to determine when a governmental employee is immune

from liability for an intentional tort. We hold that MCL 691.1407(3) of the governmental

tort liability act (GTLA), which explicitly maintains “the law of intentional torts as it

existed before July 7, 1986,” grants immunity to governmental employees from

intentional-tort liability to the extent allowed by the common law before July 7, 1986.

We therefore reaffirm and apply the test concerning intentional-tort immunity outlined in
Ross v Consumers Power Co (On Rehearing).1 Under the Ross test, governmental

employees enjoy qualified immunity for intentional torts. A governmental employee

must raise governmental immunity as an affirmative defense and establish that (1) the

employee’s challenged acts were undertaken during the course of employment and that

the employee was acting, or reasonably believed he was acting, within the scope of his

authority, (2) the acts were undertaken in good faith, and (3) the acts were discretionary,

rather than ministerial, in nature. Neither the trial court nor the Court of Appeals

considered whether the governmental employee was entitled to governmental immunity

under the test provided in Ross. Accordingly, we vacate the trial court’s order with

respect to defendant, vacate the judgment of the Court of Appeals and remand to the trial

court to apply the proper test.

I. FACTS AND PROCEDURAL HISTORY

Wayne County Sheriff’s Deputy Christine Kelly (defendant) investigated

prostitution and controlled substances offenses in the department’s “morality unit.” At

the time of the incident giving rise to the present case, she had 10 years’ experience and

had made more than 500 prostitution-related arrests. On February 11, 2004, she was

conducting surveillance near the intersection of Woodward Avenue and Burlingame

Street in the city of Detroit. Defendant claimed that plaintiff, Amanda Jean Odom,

walked back and forth along Woodward while making eye contact with the drivers of

cars passing by, a method used by prostitutes to attract the attention of potential

customers. She observed plaintiff approach the driver’s side window of a car parked in a

liquor store parking lot and then enter the back seat. The car drove to a nearby grocery

1
420 Mich 567; 363 NW2d 641 (1984).
2

store; plaintiff went inside for approximately five minutes and returned to the car,2 which

then drove away.

After contacting her supervisor and calling for backup, defendant followed the car

down Woodward Avenue and into a residential area. Detroit police officers stopped the

car at a point that, as it turned out, was only two blocks from plaintiff’s home. The

officers drew their guns and ordered plaintiff and the two female passengers out of the

vehicle.3 The women were all handcuffed and questioned.4

Upon being stopped, plaintiff asserted her innocence. She explained that her

friend had driven her home from her place of employment and showed that she was still

wearing her work identification badge. She further explained that her friend had dropped

her off at a bank and driven around the block. However, plaintiff explained that she

could not enter the bank because the police were apparently stopping a robbery in

progress. She looked north and south before sighting her friend’s car in a nearby parking

lot. Plaintiff walked to the car, entered the back seat, and was driven to a grocery store,

where she used the ATM and purchased some groceries.

After relating her version of events to the officers, plaintiff overheard one officer

tell defendant, “Well it’s your call.” Defendant issued plaintiff a criminal citation for

“Disorderly Conduct (Flagging) Impeding the Flow of Vehicular and Pedestrian

2
Defendant asserted that it is not uncommon for a prostitute to go into a store for a short
time to purchase alcohol or condoms and return to the customer’s car.
3
There was also a three-year-old child in the car.
4
Defendant claimed that her suspicions of plaintiff were not alleviated by the fact that the
vehicle’s occupants were all female. Defendant testified in her deposition that prostitutes
often work in teams from a car and drive each other to and from “work.” Defendant also
explained that females may solicit a prostitute to purchase controlled substances on their
behalf.
3

Traffic”—an offense frequently associated with prostitution. Plaintiff claims that, when

she objected to the citation, defendant became angry and told her to “fight it.”

Plaintiff was ordered to appear for arraignment one week later. When she

appeared, however, the district court had no record of the citation. Plaintiff contacted

both the Detroit Police Department and the Wayne County Sheriff’s Department to

determine the status of the charges against her. Upon learning that the record of

plaintiff’s citation had been lost, defendant issued a new citation and had the charges

reinstated. When plaintiff appeared for arraignment a second time in June 2004, the court

required her to attend an AIDS awareness class for sex offenders. The case was

postponed several times between June and December 2004. The prosecution finally

dismissed the charges on December 6, 2004, because of insufficient evidence. The

dismissal order indicated that the parties stipulated to the existence of probable cause.

Neither plaintiff nor her counsel signed the dismissal form, and plaintiff denies that she

made such a stipulation.

Plaintiff filed suit against defendant, Wayne County, and the city of Detroit,

alleging false imprisonment and malicious prosecution. The parties stipulated to the

dismissal of the city of Detroit early in the proceedings. In their answer to plaintiff’s

complaint, defendant and Wayne County raised “individual immunity” and

“governmental immunity,” respectively, as affirmative defenses. Following discovery,

defendant and Wayne County also filed a joint motion for summary disposition based on

governmental immunity, MCR 2.116(C)(7), and failure to create a genuine issue of

4

material fact, MCR 2.116(C)(10).5 The trial court granted the county summary

disposition on the basis of the governmental immunity conferred by MCL 691.1407(1).6

The trial court denied defendant summary disposition. Although plaintiff alleged

that defendant had committed the intentional torts of false imprisonment and malicious

prosecution, the trial court concluded that plaintiff was proceeding under a gross

negligence theory because she had not alleged “an intentional act” such as excessive

force. The trial court presumably considered whether defendant was entitled to the

immunity conferred by MCL 691.1407(2); however, it did not explicitly cite the statute.

The court found that there remained factual questions regarding whether defendant had

probable cause to arrest and prosecute plaintiff. The trial court indicated that these

factual questions prevented it from determining whether defendant was entitled to

immunity as a matter of law. The court thereby treated governmental immunity as an

affirmative defense that could be proved at trial.

The Court of Appeals affirmed on other grounds. The Court of Appeals panel

made no mention of subsection 3, analyzing only the requirements of subsection 2.7 The

panel held that plaintiff had indeed alleged intentional torts. Therefore, to be protected

by governmental immunity, the challenged acts undertaken by defendant had to be

5
The motion for summary disposition also refers to MCR 2.116(C)(8); however,
defendant made no arguments based on that rule. Moreover, in a subsequent motion for
clarification of the trial court’s order, defendant asserted that she sought summary
disposition under (C)(7) and (10) and did not mention (C)(8).
6
Subsection 1 provides immunity to governmental agencies when conducting
governmental functions. It is well established that “the management, operation, and
control of a police department is a governmental function.” Mack v Detroit, 467 Mich
186, 204; 649 NW2d 47 (2002).
7
Odom v Wayne Co, unpublished opinion per curiam of the Court of Appeals, issued
February 1, 2007 (Docket No. 270501), p 2.

5

“justified” or “objectively reasonable under the circumstances,” rather than not grossly

negligent.8 The panel held that, given the conflicting evidence, whether defendant’s

conduct was justified could not be decided as a matter of law.9

Initially, this Court denied defendant’s application for leave to appeal.10 However,

upon reconsideration, we determined that this area of the law had fallen into disarray and

required clarification. We granted defendant’s application for leave to appeal and

directed the parties to address the following issues:

(1) what is the proper interpretation of MCL 691.1407(3) (“[MCL
691.1407(2)] does not alter the law of intentional torts as it existed before
July 7, 1986.”); (2) can intentional torts claims be brought under MCL
691.1407(2); and (3) for an intentional tort claim, what must a plaintiff
plead to avoid governmental immunity?[11]

II. STANDARD OF REVIEW

We review de novo a trial court’s determination regarding a motion for summary

disposition. Under MCR 2.116(C)(7), the moving party is entitled to summary

disposition if the plaintiff’s claims are “‘barred because of immunity granted by

law . . . .’”12 The moving party may support its motion for summary disposition under

8
Id. at 2-3, citing VanVorous v Burmeister, 262 Mich App 467, 480; 687 NW2d 132
(2004), Sudul v Hamtramck, 221 Mich App 455, 458; 562 NW2d 478 (1997), and Brewer
v Perrin, 132 Mich App 520, 528; 349 NW2d 198 (1984).
9
Odom, unpublished opinion per curiam at 3.
10
Odom v Wayne Co, 480 Mich 1015 (2008).
11
Odom v Wayne Co, 480 Mich 1184 (2008).
12
Glancy v City of Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998) (citation
omitted).

6

MCR 2.116(C)(7) with “affidavits, depositions, admissions, or other documentary

evidence,” the substance of which would be admissible at trial.13 “The contents of the

complaint are accepted as true unless contradicted” by the evidence provided.14

In relation to a motion under MCR 2.116(C)(10), we similarly review “the

pleadings, admissions, and other evidence submitted by the parties in the light most

favorable to the nonmoving party. Summary disposition is appropriate if there is no

genuine issue regarding any material fact and the moving party is entitled to judgment as

a matter of law.”15

This decision also requires us to interpret the provisions of § 7 of the GTLA, MCL

691.1407. We review de novo questions of statutory interpretation.16 The primary goal

of statutory interpretation is to discern the intent of the Legislature.17 “To do so, we

begin with the language of the statute, ascertaining the intent that may reasonably be

inferred from its language. When the language of a statute is unambiguous, the

Legislature’s intent is clear and judicial construction is neither necessary nor

permitted.”18

III. ANALYSIS

A. History of the Governmental Tort Liability Act

13
Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999); see also MCR

2.116(G).

14
Maiden, 461 Mich at 119.

15
Brown v Brown, 478 Mich 545, 551-552; 739 NW2d 313 (2007).

16
Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004).

17
Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180

(2001).

18
Lash v Traverse City, 479 Mich 180, 187; 735 NW2d 628 (2007).

7

 Historically, governmental immunity was a common-law doctrine. In 1961,

however, this Court abolished common-law governmental immunity in Williams v

Detroit.19 Although the Court almost immediately thereafter limited Williams and held

that governmental immunity was abolished only in relation to municipalities,20 the

Legislature reacted by enacting the first version of the GTLA in 1965. The statute

restored governmental immunity for municipalities and provided “uniform treatment for

state and local agencies.”21 The statute did not address immunity for governmental

officers or employees. Thus, governmental immunity for individuals continued to be

completely “a creature of judicial decision-making.”22

In 1984, Ross v Consumers Power Co (On Rehearing) comprehensively described

the common-law test for individual governmental immunity from all tort liability. In

Ross, judges, legislators, and the highest executive officials at all levels of government

were given immunity from all tort liability when acting within the scope of their judicial,

legislative, or executive authority.23 Lower-level governmental officials and employees

were afforded qualified immunity from all tort liability if they met all the following

conditions: (1) the acts were taken during the course of employment and the employees

were acting, or reasonably believed that they were acting, within the scope of their

19
364 Mich 231; 111 NW2d 1 (1961).

20
McDowell v State Hwy Comm’r, 365 Mich 268; 112 NW2d 491 (1961).

21
Ross, 420 Mich at 606.

22
Id. at 629.

23
Id. at 633.

8

authority, (2) the acts were taken in good faith, and (3) the acts were discretionary-

decisional, as opposed to ministerial-operational.24

The Legislature amended the GTLA in 1986 in response to Ross. Section 7 of the

GTLA now confers qualified immunity to individual governmental actors as follows:

(2) Except as otherwise provided in this section, and without regard
to the discretionary or ministerial nature of the conduct in question, each
officer and employee of a governmental agency, each volunteer acting on
behalf of a governmental agency, and each member of a board, council,
commission, or statutorily created task force of a governmental agency is
immune from tort liability for an injury to a person or damage to property
caused by the officer, employee, or member while in the course of
employment or service or caused by the volunteer while acting on behalf of
a governmental agency if all of the following are met:

(a) The officer, employee, member, or volunteer is acting or
reasonably believes he or she is acting within the scope of his or her
authority.

(b) The governmental agency is engaged in the exercise or discharge
of a governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s conduct
does not amount to gross negligence that is the proximate cause of the
injury or damage.

(3) Subsection (2) does not alter the law of intentional torts as it
existed before July 7, 1986.

***

(5) A judge, a legislator, and the elective or highest appointive
executive official of all levels of government are immune from tort liability
for injuries to persons or damages to property if he or she is acting within
the scope of his or her judicial, legislative, or executive authority.

***

(7) As used in this section:

24
Id. at 633-634.

9

 (a) “Gross negligence” means conduct so reckless as to demonstrate
a substantial lack of concern for whether an injury results.[25]

B. Interpretation of Subsections 2 and 3

The Legislature codified Ross’s grant of absolute immunity to high-ranking

officials in MCL 691.1407(5). In MCL 691.1407(2), the Legislature granted immunity to

individual governmental actors “from tort liability” for injuries or damage caused by the

employee. The Legislature eliminated the Ross distinction between discretionary and

ministerial acts and granted qualified immunity for both types of actions. Subsection 2

gives immunity for acts taken “while in the course of employment or service” if (a) the

employee “is acting or reasonably believes he or she is acting within the scope of his or

her authority,” (b) the agency that the employee serves “is engaged in the exercise or

discharge of a governmental function,” and (c) the employee’s “conduct does not amount

to gross negligence that is the proximate cause of the injury or damage.” Accordingly,

the Legislature replaced the Ross “good faith” element with a gross-negligence standard.

Subsection 2 purports to apply simply to “tort liability,” and, ironically, even

though that subsection concerns only gross negligence, defendant argued for the first time

at oral argument before this Court that the broad tort reference includes intentional torts.

However, when read in context with subsection 3, it is clear that subsection 2

encompasses only negligent tort liability. In subsection 3, the Legislature unambiguously

expressed its intent to maintain “the law of intentional torts as it existed before July 7,

1986.”26

25
MCL 691.1407.
26
MCL 691.1407(3) (emphasis added).

10

 Every provision of § 7 specifically and expressly prescribes the immunity from

tort liability extended to governmental agencies and actors. In contrast, but not

inconsistent with these provisions, subsection 3 indicates the Legislature’s intent to

confer immunity on governmental employees for intentional torts to the same extent

allowed under the common law as it existed before July 7, 1986. Thus, the Legislature

thereby removed immunity for intentional tort liability from the statutory grant of

immunity in subsection 2.

As will be discussed in more detail later, subsection 2 does alter the law of

governmental immunity as it existed before the amendment of § 7 for negligent torts

committed by lower-level government employees. Subsection 3 represents a deviation

from the legislatively created governmental immunity scheme, but the deviation is

limited to intentional torts. “[I]t is a settled rule of statutory construction that where a

statute contains a specific statutory provision and a related, but more general, provision,

the specific one controls.”27 Because subsection 3 more specifically addresses

“intentional torts” and subsection 2 more broadly addresses “tort liability,” subsection 3

must control in this case.

We reject defendant’s interpretation of subsection 3 as merely reiterating that a

governmental employee who does not satisfy the requirements of subsection 2 remains

liable for an intentional tort. This interpretation is contrary to the rules of statutory

27
In re Haley, 476 Mich 180, 198; 720 NW2d 246 (2006), citing Gebhardt v O’Rourke,
444 Mich 535, 542-453; 510 NW2d 900 (1994).

11

construction in that it would render subsection 3 surplusage.28 A “reiteration,” by

definition, creates surplus language.29 Moreover, defendant’s proposed interpretation of

the statute necessarily assumes that the reference in subsection 2 to “tort liability”

encompasses both intentional and negligent torts. If the Legislature had intended to

reiterate that a governmental employee remains liable in tort when he fails to meet the

standards of subsection 2, the language of subsection 3 would not have been specifically

limited to “intentional torts.”

Furthermore, defendant’s interpretation cannot be sustained. As noted, subsection

2 alters the common-law test for governmental immunity. If subsection 2 had altered the

common law in relation to all torts, the express terms of subsection 3 preserving “the law

of intentional torts as it existed before July 7, 1986,” would be rendered a complete

nullity. Thus, although subsection 2 abolished the Ross distinction between discretionary

and ministerial acts and replaced the Ross “good faith” element with a gross-negligence

standard, those alterations are limited to negligent torts because “[s]ubsection (2) does

not alter the law of intentional torts . . . .”30

C. Test for Immunity Outlined in Ross

The seminal pre-July 7, 1986, case defining the parameters of governmental

immunity for individuals from tort liability is Ross v Consumers Power Co (On

28
Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 470; 719
NW2d 19 (2006) (“[W]e interpret every word, phrase, and clause in a statute to avoid
rendering any portion of the statute nugatory or surplusage.”).
29
Random House Webster’s College Dictionary (1997) defines “reiterate” as “to say or
do again or repeatedly; repeat, often excessively,” and “surplusage” as “an excess of
words, [especially] in pleading a case.”
30
MCL 691.1407(3).

12

Rehearing). Over the years, substantial confusion has arisen regarding the proper

interpretation of the Ross test for individual governmental immunity as it is applied to

intentional torts. A number of cases have either misinterpreted or failed to mention Ross

in holding that there is no intentional-tort exception to governmental immunity.31 We

correct today this tangle of cases arising after the enactment of the current GTLA by

following the legislative direction to apply the common law “as it existed before July 7,

1986.”32 Ross comprehensively stated the common-law test in Michigan for individual

governmental-employee immunity before the statutory date. Contrary to defendant’s

position, Ross clearly provides governmental employees qualified immunity from

intentional-tort liability at common law. We take this opportunity to reaffirm and restate

the Ross test.33

Under Ross, to be immune from liability for intentional torts, the governmental

employee must first establish that the acts were taken “during the course of . . .

employment and” that the employee was “acting, or reasonably believe[d] [he was]

acting, within the scope of [his] authority[.]”34 This requirement ensures that a

governmental employee will not be afforded immunity when committing ultra vires acts,

31
See, e.g., Marroco v Randlett, 431 Mich 700, 707-708; 433 NW2d 68 (1988); Smith v
Dep’t of Pub Health, 428 Mich 540, 544; 410 NW2d 749 (1987). These cases are
distinguishable from the current case because they involved high-level executive officials
who were extended absolute immunity for conduct undertaken within their executive
authority and governmental agencies, respectively, rather than individual governmental
employees.
32
MCL 691.1407(3)
33
Cases holding that governmental employees are protected by more or less than the
qualified immunity for intentional-tort liability provided in Ross are overruled to the
extent that such cases are inconsistent with Ross.
34
Ross, 420 Mich at 633.

13

as these are outside the scope of the employee’s authority.35 However, it also protects a

governmental employee who reasonably believes that he was authorized to take certain

actions, but later learns that he was mistaken.36

The governmental employee must also establish that he was acting in “good faith.”

Ross did not elaborate on this element, relying instead on Prosser on Torts and the cases

cited therein.37 Prosser noted that the “considerable majority of the state courts take the

position that there is no immunity where the inferior officer does not act honestly and in

good faith, but maliciously, or for an improper purpose.”38 “[O]fficial immunity should

not become a cloak for malicious, corrupt, and otherwise outrageous conduct on the part

of those guilty of intentional abuse of power . . . .”39 The cases cited by Prosser indicate

that there is no immunity when the governmental employee acts maliciously or with a

wanton or reckless disregard of the rights of another.40

This standard is also consistent with prior Michigan caselaw. In Armstrong v Ross

Twp,41 the Court of Appeals described good faith simply as acting without malice. In

Blackman v Cooper,42 the Court of Appeals held that a police officer is entitled to

immunity when he is “acting in good faith with probable cause . . . even though the arrest

35
Id. at 631.

36
Id. at 633 n 41.

37
Id. at 632.

38
Prosser, Torts (4th ed), § 132, p 989.

39
Id.

40
See id. at 987-990.

41
82 Mich App 77, 85-86; 266 NW2d 674 (1978).

42
89 Mich App 639, 643; 280 NW2d 260 (1979).

14

is subsequently found to be baseless.” In Dickey v Fluhart,43 the Court of Appeals held

that an “action may lie only if the officer has utilized wanton or malicious conduct or

demonstrated a reckless indifference to the common dictates of humanity.”

This Court has described a lack of good faith as “malicious intent, capricious

action or corrupt conduct”44 or “willful and corrupt misconduct . . . .”45 In Firestone v

Rice,46 in which the plaintiff brought an action for false imprisonment and assault and

battery against a police officer for handcuffing him, the Court held:

There must be some discretion reposed in a sheriff or other officer,
making an arrest for felony, as to the means taken to apprehend the
supposed offender, and to keep him safe and secure after such
apprehension. And this discretion cannot be passed upon by a court or jury
unless it has been abused through malice or wantonness or a reckless
indifference to the common dictates of humanity.

In addition, this Court has held that “willful and wanton misconduct is made out

only if the conduct alleged shows an intent to harm or, if not that, such indifference to

whether harm will result as to be the equivalent of a willingness that it does.”47

Similarly, our standard civil jury instructions define “willful misconduct” as “conduct or

a failure to act that was intended to harm the plaintiff”48 and “wanton misconduct” as

“conduct or a failure to act that shows such indifference to whether harm will result as to

be equal to a willingness that harm will result.”49 These instructions are consistent with

43
146 Mich App 268, 276; 380 NW2d 76 (1985).

44
Veldman v Grand Rapids, 275 Mich 100, 113; 265 NW 790 (1936).

45
Amperse v Winslow, 75 Mich 234, 245; 42 NW 823 (1889).

46
71 Mich 377, 384; 38 NW 885 (1888) (emphasis added).

47
Burnett v City of Adrian, 414 Mich 448, 455; 326 NW2d 810 (1982).

48
M Civ JI 14.12.

49
M Civ JI 14.11.

15

the negation of the common-law definition of “good faith” and can be a useful guide for a

trial court considering a defendant’s motion for summary disposition based on individual

governmental immunity. Thus, the proponent of individual immunity must establish that

he acted without malice.

The final Ross element to be considered when determining whether an individual

is entitled to governmental immunity is whether the challenged “act” was ministerial or

discretionary in nature. As explained in Ross, “‘A ministerial officer has a line of

conduct marked out for him, and has nothing to do but to follow it; and he must be held

liable for any failure to do so which results in the injury of another.’”50 Ministerial acts

“constitute merely an obedience to orders or the performance of a duty in which the

individual has little or no choice.”51 The execution of an act once a decision has been

made is also ministerial in nature.52 “Discretion,” on the other hand, “‘implies the right

to be wrong.’”53 Discretionary acts “require personal deliberation, decision and

judgment.”54 Although the decision need not be extraordinary, governmental immunity

is not afforded for “every trivial decision” an actor may make.55 Granting immunity to an

50
Ross, 420 Mich at 626, quoting Wall v Trumbull, 16 Mich 228, 235 (1867).

51
Ross, 420 Mich at 634.

52
Id. at 634-635.

53
Id. at 628, quoting Williams, 364 Mich at 261 (opinion by Edwards, J.).

54
Ross, 420 Mich at 634, citing Prosser, § 132, p 988.

55
Ross, 420 Mich at 634.

16

employee engaged in discretionary acts allows the employee to resolve problems without

constant fear of legal repercussions. 56

Police officers perform many discretionary acts each day. An officer must use his

judgment to determine whether there is reasonable suspicion to investigate or probable

cause to arrest and to determine the amount of force necessary to effectuate an arrest. A

police officer similarly conducts many ministerial acts each day, such as completing

activity logs and police reports or following the procedures for booking an arrested

person.

D. Burden of Proof

The parties dispute who bears the burden of proof with regard to governmental

immunity: whether the plaintiff must plead in avoidance of immunity in the complaint or

whether the defendant must raise immunity as an affirmative defense.

The doctrine of “sovereign immunity” dates back to the English common law. While

England was ruled by an absolute monarch, English law settled that the king was the law

and, therefore, could not violate the law. Moreover, it was deemed “a contradiction of

[the king’s] sovereignty to allow him to be sued as of right in his own courts.”57

Governmental immunity for individuals began as an extension of the sovereign immunity

given the king. It was employed to protect from liability “the servants who were carrying

out [the king’s] commands.”58 However, when England began to function under a

56
We again note that the elimination in MCL 691.1407(2) of the distinction between
ministerial and discretionary acts does not apply to individual immunity from intentional
tort liability, which is provided in subsection 3 of the statute.
57
Prosser, § 131, pp 970; see also 4 Restatement Torts, 2d, ch 45A, p 394.
58
4 Restatement, §895D, comment a, p 411.

17

parliamentary government, English common-law immunity doctrines fundamentally

changed. Although the king continued to be protected by sovereign immunity, the king’s

agents were held liable for their wrongs, and the wrongs of the king that were imputed to

them.59

American courts adopted the concept of sovereign, or “governmental,” immunity

to protect from liability the sovereign state governments (and state agencies as integral

parts of the state). A central tenet of this sovereign or governmental immunity is that the

state may be held liable in a court of law only when the state has expressly permitted a

suit against it.60 Under the GTLA, the state maintains its immunity when “engaged in the

exercise or discharge of a governmental function”61 unless the plaintiff establishes the

existence of a statutorily created exception to that immunity.62

Sovereign immunity as it applied to the king in English common law and

statutorily created governmental immunity that is currently applicable to the state as a

sovereign government are “characteristic[s] of government.”63 As such, this immunity

59
See Prosser, § 131, p 971; 4 Restatement, § 895D, comment a, pp 411-412.
60
Prosser, § 131, pp 971, 975-976; 4 Restatement, § 895B and comment a, pp 399-401.
61
MCL 691.1407(1).
62
The statutory exceptions to the governmental immunity provided to the state and its
agencies are the highway exception, MCL 691.1402; the motor-vehicle exception, MCL
691.1405; the public-building exception, MCL 691.1406; the proprietary-function
exception, MCL 691.1413; the governmental-hospital exception, MCL 691.1407(4); and
the sewage-disposal-system-event exception, MCL 691.1417(2) and (3). Wesche v
Mecosta Co Rd Comm, 480 Mich 75, 84 n 10; 746 NW2d 847 (2008).
63
Mack, 467 Mich at 198, citing (among other cases) Canon v Thumudo, 430 Mich 326,
344 n 10; 422 NW2d 688 (1988), Hyde v Univ of Michigan Bd of Regents, 426 Mich 223,
261 n 35; 393 NW2d 847 (1986), Ross, 420 Mich at 621 n 34, and McCann v Michigan,
398 Mich 65; 247 NW2d 521 (1976). The only case holding otherwise was
McCummings v Hurley Med Ctr, 433 Mich 404; 446 NW2d 114 (1989). McCummings
was an aberration, which this Court overruled in Mack.
18

protects the state not only from liability, but also from the great public expense of having

to contest a trial.64 A plaintiff filing suit against a governmental agency must initially

plead his claims in avoidance of governmental immunity. Placing this burden on the

plaintiff relieves the government of the expense of discovery and trial in many cases.

Over time, governmental immunity for individuals evolved into an affirmative

defense under the common law and thus was differentiated from the immunity given to

the sovereign.65 In the GTLA, the Legislature has not abrogated the common law by

shifting the burden of proof with regard to governmental immunity for individuals. As

such, the burden continues to fall on the governmental employee to raise and prove his

entitlement to immunity as an affirmative defense.66

E. Summary of the Test for Individual Governmental Immunity

64
Mack, 467 Mich at 203 n 18; Walsh v Taylor, 263 Mich App 618, 624; 689 NW2d 506
(2004).
We note that the expense to the state government and to the public can be just as
great in a suit filed against a governmental employee. MCL 691.1408(1) provides that, in
a civil action against a governmental employee, the government “may pay for, engage, or
furnish the services of an attorney,” “may compromise, settle, and pay the claim” before
trial, and “may indemnify the officer, employee, or volunteer or pay, settle, or
compromise the judgment” following a trial. In light of this statute, it seems inconsistent
to characterize sovereign or governmental immunity as a characteristic of government
that the plaintiff must avoid in his pleading as an element of the claim and individual
governmental immunity as an affirmative defense. However, the Legislature indicated
that “[t]his section does not impose liability on a governmental agency,” MCL
691.1408(3), thereby expressing its intent not to transform the state’s debt on behalf of an
employee into something that can be protected by its sovereign or governmental
immunity.
65
Mack, 467 Mich at 198 n 15, quoting Canon, 430 Mich at 344 n 10.
66
Mack, 467 Mich at 198 n 15; see also MCR 2.111(F)(3)(a).
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 To summarize and simplify the application of our decision, we provide these steps

to follow when a defendant raises the affirmative defense of individual governmental

immunity. The court must do the following:

(1) Determine whether the individual is a judge, a legislator, or the highest-ranking

appointed executive official at any level of government who is entitled to absolute

immunity under MCL 691.1407(5).

(2) If the individual is a lower-ranking governmental employee or official,

determine whether the plaintiff pleaded an intentional or a negligent tort.

(3) If the plaintiff pleaded a negligent tort, proceed under MCL 691.1407(2) and

determine if the individual caused an injury or damage while acting in the course of

employment or service or on behalf of his governmental employer and whether:

(a) the individual was acting or reasonably believed that he was acting within the

scope of his authority,

(b) the governmental agency was engaged in the exercise or discharge of a

governmental function, and

(c) the individual’s conduct amounted to gross negligence that was the proximate

cause of the injury or damage.

(4) If the plaintiff pleaded an intentional tort, determine whether the defendant

established that he is entitled to individual governmental immunity under the Ross test by

showing the following:

(a) The acts were undertaken during the course of employment and the employee

was acting, or reasonably believed that he was acting, within the scope of his authority,

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 (b) the acts were undertaken in good faith, or were not undertaken with malice,

and

(c) the acts were discretionary, as opposed to ministerial.

IV. APPLICATION OF THE ROSS TEST TO THIS CURRENT CASE

Following the guidelines set forth in this opinion, we first note that defendant

indisputably is a lower-level government employee not entitled to the absolute immunity

provided by MCL 691.1407(5).

It is equally clear that plaintiff pleaded intentional, rather than negligent, torts.

Plaintiff asserted claims of false imprisonment and malicious prosecution, both of which

contain intent as an element.67 Contrary to the trial court’s opinion, a plaintiff need not

plead a forceful or physical act, such as use of excessive force, but must plead only an

intentional act.

As plaintiff pleaded the occurrence of intentional torts, the trial court was required

to determine whether defendant was entitled to governmental immunity as provided by

the common law before July 7, 1986. Defendant timely raised governmental immunity as

an affirmative defense in her first responsive pleading, as well as raising it in her motion

for summary disposition. To be entitled to governmental immunity, defendant must

establish that she was acting in the course of her employment and at least reasonably

believed that she was acting within the scope of her authority, that her actions were

discretionary in nature, and that she acted in good faith.

Because it used the wrong legal standard, the trial court did not address these

questions, finding only that there remained a question of fact whether defendant lacked

67
See Lewis v Farmer Jack Div, Inc, 415 Mich 212; 327 NW2d 893 (1982).

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probable cause to detain or arrest plaintiff. The mere existence of probable cause,

however, is not the proper inquiry. A police officer would be entitled to immunity under

Ross if he acted in good faith and honestly believed that he had probable cause to arrest,

even if he later learned that he was mistaken.68 Yet the existence of probable cause is

relevant to the analysis; a claim of false arrest or false imprisonment cannot be sustained

if the arrest was legal.69

The Court of Appeals held that there remained a question of fact whether

defendant’s conduct was justified and “objectively reasonable.” This objective analysis

is also not the proper Ross inquiry. The good-faith element of the Ross test is subjective

in nature. It protects a defendant’s honest belief and good-faith conduct with the cloak of

immunity while exposing to liability a defendant who acts with malicious intent.70

On remand, the trial court must reconsider defendant’s motion for summary

disposition in light of the Ross test and determine if defendant adequately supported her

claim of governmental immunity.

V. CONCLUSION

The trial court erroneously determined that plaintiff’s claims sounded in gross

negligence and, therefore, analyzed defendant’s motion for summary disposition based on

governmental immunity under MCL 691.1407(2). Plaintiff pleaded claims of intentional

torts, and defendant was required to establish that she was entitled to governmental

immunity pursuant to Ross, as required by MCL 691.1407(3). The trial court’s analysis

68
See Prosser, § 132, p 989 nn 95-96, and the cases cited therein; see also Blackman, 89

Mich App at 643.

69
Lewis, 415 Mich at 218 n 2.

70
See Prosser, § 132, p 989.

22

was erroneous because it focused solely on the potential lack of probable cause to arrest

and detain plaintiff, contrary to the requirements of Ross. The Court of Appeals

recognized that plaintiff’s claims sounded in intentional tort, but analyzed defendant’s

right to immunity under subsection 2, which applies only to negligent torts. On remand,

the trial court must determine whether defendant had a good-faith belief that she

possessed probable cause to detain plaintiff before ruling on defendant’s motion for

summary disposition based on governmental immunity.

Because of the errors committed below, we vacate the trial court’s order with respect

to defendant, vacate the judgment of the Court of Appeals and remand this case to the

trial court for further proceedings consistent with this opinion. We do not retain

jurisdiction.

Robert P. Young, Jr.
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Stephen J. Markman

Cavanagh and Kelly, JJ. We concur in the result only.

Michael F. Cavanagh
Marilyn Kelly

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